Federal Communications Commission Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) WGBB-AM, Inc. ) File Number EB-07-NY-247 ) Owner of Antenna Structure ) NAL/Acct. No. 200832380004 ASR # 1064894 ) Freeport, New York ) FRN 0003 7760 02 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: January 25, 2008 By the District Director, New York Office, Northeast Region, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”), we find that WGBB-AM, Inc. (“WGBB”), owner of antenna structure 1064894 located in Freeport, New York, apparently willfully and repeatedly violated Sections 17.48(a) and 17.57 of the Commission's Rules ("Rules")1 by failing to report immediately to the nearest Flight Service Station or office of the Federal Aviation Administration an observed and known extinguishment of the tower’s top red flashing obstruction light and by failing to immediately notify the Commission of a change of ownership of its antenna structure. We conclude, pursuant to Section 503(b) of the Communications Act of 1934, as amended ("Act"),2 that WGBB is apparently liable for a forfeiture in the amount of six thousand dollars ($6,000). II. BACKGROUND 2. On July 16, 2007, the FCC’s Crisis and Communications Management Center (CCMC) received a report from the Freeport, New York Police Department of a tower light outage on antenna structure 1064894. The report was subsequently forwarded to the FCC’s New York Office for appropriate action. Immediately after receiving the report, an agent in the New York Office checked the FCC’s Antenna Structure Registration (“ASR”) database for antenna structure 1064894, which listed Cox Radio, Inc. (“Cox”) as the registered owner of the 86.5 meter tower located in Freeport, New York. ASR 1064894 requires that the tower be painted and lighted in accordance with Chapters 3, 4, 5, and 13 of FAA Circular Number 70/7460-1J. Specifically, Chapter 5 requires a top-mounted red flashing obstruction light and steady burning red side lights at the tower’s midpoint for nighttime visibility. 3. Immediately following the check of the ASR database, the agent checked the FAA’s DINS (Defense Internet NOTAM Service) database and called the FAA’s nearest Flight Service Station in Ronkonkoma, New York and determined that there was no open NOTAM (Notice to Airmen) for antenna structure 1064894, indicating that the FAA was not notified of the light outage. The agent then spoke to Cox’s station manager, who stated that Cox sold the tower and radio station to WGBB-AM, Inc. 1 47 C.F.R. §§ 17.48(a), 17.57. 2 47 U.S.C. § 503(b). Federal Communications Commission several years ago, possibly in 1999.3 The agent checked the FCC database for AM radio station WGBB, and found that the current licensee of WGBB was WGBB-AM, Inc. (“WGBB”). 4. On that same day, July 16, 2007, the agent spoke by telephone to WGBB’s station manager, who stated that WGBB was the current owner of the tower and that WGBB purchased the station and tower from Cox a number of years ago. The agent informed the station manager of the reported light outage, and the violations for failure to immediately report the outage to the FAA and for failure to change the ownership information on the ASR. The station manager stated that on July 10 or 11, 2007, the local police called the radio station to report a light outage on the Freeport tower and that he drove to the tower site that night and visually confirmed that the top red obstruction light was extinguished. He further stated that he notified the station’s engineer, but that neither he nor the station’s engineer reported the outage to the FAA because they were not aware of the requirement to do so. The agent advised the station manager to immediately report the light outage to the FAA’s nearest Flight Service Station, that the light should be repaired as soon as possible, and that the ownership information on the ASR must be changed. The station manager stated that he did not know how to contact the FAA and did not know the tower’s ASR number. After the agent gave him this information, the station manager reported the outage to the FAA. 5. On July 17, 2007, the agent checked the FAA’s DINS NOTAM database, which showed that on July 16, 2007, a NOTAM was issued for the light outage on ASR 1064894. Also on July 17, the agent spoke by telephone to WGBB’s station manager, who stated that WGBB had made arrangements with a tower contractor to repair the light. The station manager called the agent on July 25, 2007 and stated that the tower light on ASR 1064894 was repaired and has been functioning since 4:00 p.m. that day. 6. On July 30, 2007, the agent checked the FCC’s ASR database for antenna structure 1064894, which correctly showed WGBB-AM, Inc. as the tower owner. According to the ASR database, the notification was submitted on July 27, 2007. III. DISCUSSION 7. Section 503(b) of the Act provides that any person who willfully or repeatedly fails to comply substantially with the terms and conditions of any license, or willfully or repeatedly fails to comply with any of the provisions of the Act or of any rule, regulation or order issued by the Commission thereunder, shall be liable for a forfeiture penalty. The term "willful" as used in Section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly.4 The term “repeated” means the commission or omission of such act more than once or for more than one day.5 8. Section 17.48(a) of the Commission’s Rules states that “The owner of any antenna structure which is registered . [s]hall report immediately by telephone or telegraph to the nearest Flight Service Station or office of the Federal Aviation Administration any observed or otherwise known 3 FCC records show that Cox Radio, Inc. sold AM radio station WGBB to WGBB-AM, Inc. in June, 1999. 4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that "[t]he term 'willful', when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act…." See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 5 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that "[t]he term 'repeated', when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day.” 2 Federal Communications Commission extinguishment or improper functioning of any top steady burning light or any flashing obstruction light, regardless of its position on the antenna structure, not corrected within 30 minutes.”6 According to WGBB’s station manager, local police reported the light outage to WGBB personnel on July 10 or 11, 2007, and the light outage was confirmed the same evening by the station manager. The station manager admitted that WGBB did not immediately report the outage to the FAA because he was not aware of the requirement to do so. 7 The tower light reportedly was still out on July 16, 2007, when the Freeport Police Department notified the FCC about the unlit tower light. According to FAA records, WGBB did not notify the FAA of the outage and no NOTAM was issued for the tower until July 16, 2007, and such notification to the FAA was made only after the station manager was instructed to do so by an FCC agent. Accordingly, based on the evidence before us, we find that WGBB apparently willfully and repeatedly violated Section 17.48(a) of the Rules by failing to report to the nearest Flight Service Station or office of the Federal Aviation Administration an observed and known extinguishment of its tower’s top red flashing obstruction light. 9. Section 17.57 of the Commission’s Rules states that “[t]he owner of an antenna structure for which an Antenna Structure Registration Number has been obtained must . immediately notify the Commission using FCC Form 854 upon any change in structure height or change in ownership information.”8 On July 16, 2007, a check of the FCC’s ASR database listed Cox Radio, Inc. as the registered owner of antenna structure 1064894. Both WGBB and Cox personnel acknowledged to the agent that WGBB had purchased antenna structure 1064894 from Cox several years ago, and that WGBB was the current owner of the structure. According to FCC records, WGBB had purchased AM radio station WGBB from Cox in 1999, which included the antenna structure. WGBB did not change the ownership information on the ASR until July 27, 2007, and only after an FCC agent investigating the reported light outage advised WGBB station management of the incorrect ownership information on the ASR. Accordingly, based on the evidence before us, we find that WGBB apparently willfully and repeatedly violated Section 17.57 of the Rules by failing to immediately notify the Commission of a change of ownership of its antenna structure.